CAAF decided the Air Force case of United States v. Danylo, No. 13-0570/AF, 73 M.J. 177 (CAAFlog case page) (link to slip op.), on Monday, March 24, 2014, narrowly deciding that the delays in the case do not rise to the level of a violation of Appellant’s Sixth Amendment right to a speedy trial, and that the military judge did not err in his speedy trial analysis, affirming Appellant’s conviction and the decision of the Air Force CCA.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Chief Judge Baker dissents, joined by Judge Erdmann.

Appellant was convicted by a general court-martial composed of a military judge alone, pursuant to conditional pleas of guilty entered in accordance with a pretrial agreement, of use and distribution of marijuana and cocaine, introduction of marijuana, and assault consummated by a battery, in violation of Articles 112a and 128. He was sentenced to a bad-conduct discharge and confinement for 10 months. The pretrial agreement had no effect on the adjudged sentence because it only capped the confinement at time served, which was 350 days.

But during that 350 days of pretrial confinement Appellant made numerous speedy trial demands, and he even won dismissal of the charges on speedy trial grounds. However, the Government appealed, and 170 days passed (with Appellant still confined) before the Air Force CCA issued an opinion reversing the trial judge’s decision and reinstating the charges. Appellant again moved for dismissal at the trial stage, but the judge denied the motion, focusing on just the delay after the CCA’s decision on the Government’s appeal (reasoning that the CCA had resolved all prior delay in its decision).

On direct appeal, the AFCCA again reviewed the delay prior to the judge’s dismissal, and again found no violation of Appellant’s speedy trial right. CAAF then granted review of two issues:

I. Whether the military judge erred when he only considered the period of time of appellant’s Article 62, UCMJ, appeal for the purpose of his speedy trial motion.
II. Whether the appellant was denied his Sixth Amendment right to a speedy trial when his court-martial occurred 350 days after he was placed in pretrial confinement.

Judge Stucky begins his majority opinion by noting the limited scope of CAAF’s review in this case, eliminating the possibility that this case might resurrect the dead Article 10 (our #10 story of 2013). CAAF does not consider the speedy trial provisions of either Article 10 or Rule for Courts-Martial 707, as “the only assigned issue in his petition, and the issue this Court granted, was the Sixth Amendment issue.” Slip op. at 6. That issue is analyzed with the familiar four-factor test from Barker v. Wingo:

(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.

The majority easily resolves both the first and third factors, as the Government conceded that both favored Appellant. But the bulk of the court’s analysis – and Chief Judge Baker’s dissent – is focused on the second and fourth factors.

CAAF will hear oral argument in the Air Force case of United States v. Danylo, No. 13-0570/AF (CAAFlog case page), on Monday, December 16, 2013, at 9:30 a.m. The case continues the contentious litigation of Appellant’s speedy trial claims that were repeatedly considered at the trial level and by the beleaguered Air Force Court of Criminal Appeals.

Appellant was convicted, pursuant to conditional pleas of guilty entered in accordance with a pretrial agreement, of use and distribution of marijuana and cocaine, introduction of marijuana, and assault consummated by a battery, in violation of Articles 112a and 128. He was sentenced to a bad-conduct discharge and confinement for 10 months. The pretrial agreement had no effect on the adjudged sentence, as it merely limited the confinement to 350 days.

But that 350 days is precisely the issue, as it’s the length of time Appellant spent in pretrial confinement, and is central to CAAF’s consideration of this case. The odyssey began on April 9, 2010, when Appellant (an E-1) was transferred to a “transition flight” (an administrative unit for Air Force personnel pending separation). A few days later Appellant assaulted another Airman, landing him in pretrial confinement at the Wichita County Jail Annex in Wichita Falls, Texas. But the other Airman was hardly an innocent victim. Instead, he and Appellant (and others) were involved in drug activity that was already under investigation by the Air Force Office of Special Investigations (AFOSI).

So Appellant went to jail and the military justice office at Sheppard Air Force Base, Texas, began to develop a prosecution strategy for Appellant and his cohorts. But it appears that the prosecutors were unable to prove the case without the assistance of Appellant’s crew, and they struggled with the decision of whether to issue orders to testify with grants of immunity or to pursue pretrial agreements with cooperation clauses. The weeks turned into months, Appellant was transferred to a military confinement facility in New Mexico, and the prosecutors eventually decided to grant immunity and compel the testimony of four other Airmen (including the assault victim). But this decision took so long that charges weren’t preferred against Appellant until June 22, 2010; 74 days after Appellant was transferred to the “transition flight” and 67 days after he began pretrial confinement.

An Article 32 pretrial investigation was conducted and the charges were referred to a general court-martial. Appellant was arraigned on August 10, 2010 (123 days after beginning “transition flight,” and 116 days after beginning confinement), and the parties litigated a Defense motion alleging that the Government had violated Appellant’s speedy trial rights by its pretrial processing of the case. The military judge agreed with the Defense, and dismissed the case with prejudice for violation of the statutory speedy trial guarantee of Article 10, UCMJ, and without prejudice for violation of the regulatory speedy trial guarantee of Rule for Courts-Martial 707. The Government moved for reconsideration, which was denied, and then the Government filed an interlocutory appeal under Article 62.

The case moved to the Air Force CCA at Joint Base Andrews, Maryland, where delay has become its own issue already considered by CAAF in United States v. Merritt, No. 13-0283/AF, 72 M.J. 483 (link to slip op.) (CAAFlog case page). The Government submitted its appeal to the CCA on September 20, 2010, the Defense responded on October 8, and multiple requests for expedited consideration were submitted by both sides. Despite all this, five months passed before the CCA issued its decision on March 9, 2011, reversing the military judge, reinstating the charges against Appellant, and returning the case to Texas.

Appellant remained in pretrial confinement throughout this period, and his repeated requests for release were all denied. But despite the four grants of immunity, the Government was apparently desperate to avoid a contested trial as it agreed to a sweetheart deal with Appellant that allowed him to enter conditional pleas of guilty (ensuring preservation of his speedy trial claims for appeal) and limited his confinement to the less than a year of time already served (my math shows that Appellant’s guilty pleas exposed him to a maximum term of confinement for 42.5 years). The Government also endured a second round of trial-stage litigation of the speedy trial issue, where “the military judge considered the Appellant’s 132-page motion, the government’s 315-page response, and oral argument from both sides.” Gov’t. Br. at 5-6 (citations to record omitted). Astonishingly, the Government went through all this for what was the second pretrial agreement in this case. Appellant had withdrawn from the first (and presumably even more generous) agreement in order to litigate his release from pretrial confinement while the case was pending at the CCA.

When the military judge heard Appellant’s second speedy trial motion, he “focused on the delays incurred after the Article 62(a) appeal was brought by the government.” Gov’t Br. at 6 (citation and marks omitted). But this time the judge denied Appellant’s motion, finding that Appellant was not prejudiced by the delays. The military judge then accepted Appellant’s guilty pleas and sentenced him to confinement for two months less than the time Appellant had already served.

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ONLY CONSIDERED THE PERIOD OF TIME FOR APPELLANT’S ARTICLE 62 APPEAL FOR THE PURPOSES OF APPELLANT’S SPEEDY TRIAL MOTION.

II. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL WHEN HIS COURT-MARTIAL OCCURRED 350 DAYS AFTER HE WAS PLACED IN PRETRIAL CONFINEMENT.

Briefs will be filed under Rule 25.

And we are like, “No way!”

The AFCCA’s opinion is here. Notably, the charges were dismissed with prejudice after Appellant raised a speedy trial claim at the trial stage. But the Government appealed, the AFCCA reversed (after hearing oral argument; recording here), and Appellant entered conditional pleas of guilty.

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